This book focuses on the debates concerning aspects of intellectual property law that bear on access to medicines in a set of developing countries. Specifically, the chapters look at measures that ...
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This book focuses on the debates concerning aspects of intellectual property law that bear on access to medicines in a set of developing countries. Specifically, the chapters look at measures that regulate the acquisition, recognition, and use of patent rights on pharmaceuticals and trade secrets in data concerning them, along with the conditions under which these rights expire so as to permit the production of cheaper generic drugs. In addition, the book includes commentary from scholars in human rights, international institutions, and transnational activism. The case studies presented from eleven Latin American countries have many commonalities in terms of economics, legal systems, and political histories, and yet they differ in the balance each has struck between proprietary interests and access concerns. The book documents this cross-country variation in legal norms and practice, identifies the factors that have led to differences in result, and theorizes as to how differentials among these countries occur and why they endure within a common transnational regulatory regime. The work concludes by putting the results of the investigations into a global administrative law frame and offers suggestions on institutional mechanisms for considering the trade-offs between health and wealth.Less

Balancing Wealth and Health : The Battle over Intellectual Property and Access to Medicines in Latin America

Published in print: 2014-03-13

This book focuses on the debates concerning aspects of intellectual property law that bear on access to medicines in a set of developing countries. Specifically, the chapters look at measures that regulate the acquisition, recognition, and use of patent rights on pharmaceuticals and trade secrets in data concerning them, along with the conditions under which these rights expire so as to permit the production of cheaper generic drugs. In addition, the book includes commentary from scholars in human rights, international institutions, and transnational activism. The case studies presented from eleven Latin American countries have many commonalities in terms of economics, legal systems, and political histories, and yet they differ in the balance each has struck between proprietary interests and access concerns. The book documents this cross-country variation in legal norms and practice, identifies the factors that have led to differences in result, and theorizes as to how differentials among these countries occur and why they endure within a common transnational regulatory regime. The work concludes by putting the results of the investigations into a global administrative law frame and offers suggestions on institutional mechanisms for considering the trade-offs between health and wealth.

This book addresses two problems surrounding the interpretation and application of Article 81 of the EC Treaty: what is competition and how does Article 81 ensure that competition is protected? After ...
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This book addresses two problems surrounding the interpretation and application of Article 81 of the EC Treaty: what is competition and how does Article 81 ensure that competition is protected? After over forty years of application and a period of modernisation, decentralisation, and reflection, it is possible to understand Article 81 and what it seeks to achieve. The book's aim is to reveal the intellectual order and rational structure underlying the law so as to enable the reader to understand Article 81 in a clear and rigorous manner. This is done by breaking Article 81 down into its constituent elements and examining the function that each element serves. Arguing that jurisdiction rests on a public/private distinction, both the substantive and the justificatory rules are cast to generate obligations appropriate for private actors to perform. Actors and activities falling within the scope of Article 81 are subject to the substantive element prohibiting contrived reductions in output. Since output reduction can co-exist with cost reduction/innovation, and given that these latter features are desirable, cost reduction and innovation operate to justify infringement of the substantive obligation. Thus this book argues that output, cost and innovation are the only legitimate issues in an Article 81 analysis. It is in this sense that the monograph is concerned with the boundaries of Article 81 EC.Less

The Boundaries of EC Competition Law : The Scope of Article 81

Okeoghene Odudu

Published in print: 2006-02-23

This book addresses two problems surrounding the interpretation and application of Article 81 of the EC Treaty: what is competition and how does Article 81 ensure that competition is protected? After over forty years of application and a period of modernisation, decentralisation, and reflection, it is possible to understand Article 81 and what it seeks to achieve. The book's aim is to reveal the intellectual order and rational structure underlying the law so as to enable the reader to understand Article 81 in a clear and rigorous manner. This is done by breaking Article 81 down into its constituent elements and examining the function that each element serves. Arguing that jurisdiction rests on a public/private distinction, both the substantive and the justificatory rules are cast to generate obligations appropriate for private actors to perform. Actors and activities falling within the scope of Article 81 are subject to the substantive element prohibiting contrived reductions in output. Since output reduction can co-exist with cost reduction/innovation, and given that these latter features are desirable, cost reduction and innovation operate to justify infringement of the substantive obligation. Thus this book argues that output, cost and innovation are the only legitimate issues in an Article 81 analysis. It is in this sense that the monograph is concerned with the boundaries of Article 81 EC.

This book provides an account of European competition law from the perspective of its coherence, in the context of modernization. Coherence is defined as consistency towards a clearly defined ...
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This book provides an account of European competition law from the perspective of its coherence, in the context of modernization. Coherence is defined as consistency towards a clearly defined objective, in this case identified as the internal market. In addition, the performance on the variables efficiency and legitimacy is charted. While the focus is on antitrust, the book also examines merger and state aid control, as well as the sectoral regulatory frameworks for energy and electronic communications. For each of these the book looks at objectives, rules, and exceptions, as well as the way in which enforcement is organized. The findings are that the objectives of EU competition law are fairly straightforward as are the rules, but that the available exceptions vary widely between the different instruments and are disputed. Within antitrust and sectoral competition law enforcement is coordinated effectively between the EU Commission and networks of national (competition) authorities and can be deemed a success. For merger and state aid control a centralized model persists instead that resembles that of antitrust prior to modernization. Among future charges in the interest of coherence, legitimacy, and effectiveness of harmonization of remedies and procedure (now largely in the realm of national law) is likely.Less

Coherence in EU Competition Law

Wolf Sauter

Published in print: 2016-05-01

This book provides an account of European competition law from the perspective of its coherence, in the context of modernization. Coherence is defined as consistency towards a clearly defined objective, in this case identified as the internal market. In addition, the performance on the variables efficiency and legitimacy is charted. While the focus is on antitrust, the book also examines merger and state aid control, as well as the sectoral regulatory frameworks for energy and electronic communications. For each of these the book looks at objectives, rules, and exceptions, as well as the way in which enforcement is organized. The findings are that the objectives of EU competition law are fairly straightforward as are the rules, but that the available exceptions vary widely between the different instruments and are disputed. Within antitrust and sectoral competition law enforcement is coordinated effectively between the EU Commission and networks of national (competition) authorities and can be deemed a success. For merger and state aid control a centralized model persists instead that resembles that of antitrust prior to modernization. Among future charges in the interest of coherence, legitimacy, and effectiveness of harmonization of remedies and procedure (now largely in the realm of national law) is likely.

This book is an attempt to take stock of and analyze the multifaceted role of the state and its impact on competition law and policy. The chapters address various aspects of the tensions and ...
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This book is an attempt to take stock of and analyze the multifaceted role of the state and its impact on competition law and policy. The chapters address various aspects of the tensions and complexities involved in competition and the role of the state. Although the book offers different normative approaches, economic analysis remains a unifying theme to the book. How economic analysis may be used in competition law and policy creates potential problems with other parts of regulation.Less

Competition and the State

Published in print: 2014-05-21

This book is an attempt to take stock of and analyze the multifaceted role of the state and its impact on competition law and policy. The chapters address various aspects of the tensions and complexities involved in competition and the role of the state. Although the book offers different normative approaches, economic analysis remains a unifying theme to the book. How economic analysis may be used in competition law and policy creates potential problems with other parts of regulation.

This book addresses two related strands of literature - antitrust/competition law and economics and law and development. Whereas most competition law and economics has focused on developments in the ...
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This book addresses two related strands of literature - antitrust/competition law and economics and law and development. Whereas most competition law and economics has focused on developments in the United States and Europe, increasingly competition law, economics, and policy have taken a more important role in developing countries. This book focuses on the key variables involved in an increasingly global competition policy system.Less

Competition Law and Development

Published in print: 2013-09-11

This book addresses two related strands of literature - antitrust/competition law and economics and law and development. Whereas most competition law and economics has focused on developments in the United States and Europe, increasingly competition law, economics, and policy have taken a more important role in developing countries. This book focuses on the key variables involved in an increasingly global competition policy system.

This book presents a new stage in the contributions of the BRICS countries (Brazil, Russia, India, China, and South Africa) to the development of Competition Law and policy. These countries have ...
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This book presents a new stage in the contributions of the BRICS countries (Brazil, Russia, India, China, and South Africa) to the development of Competition Law and policy. These countries have significant influence in their respective regions and in the world. The changing global environment means greater political and economic role for the BRICS and other emerging countries. BRICS countries are expected to contribute nearly half of all global gross domestic product growth by 2020. For more than a century, the path of Competition Law has been defined by the developed and industrialized countries of the world. Much later, developing countries and emerging economies came on the scene. They experience many of the old competition problems, but they also experience new problems, and experience even the old problems differently. Where are the fora to talk about Competition Law and policy fit for developing and emerging economies? The contributors in this book are well-known academic and practising economists and lawyers from both developed and developing countries. The chapters begin with a brief introduction of the topic, followed by a critical discussion and a conclusion. Accordingly, each chapter is organized around a central argument made by its author(s) in relation to the issue or case study discussed. These arguments are thoughtful, precise, and very different from each another. Each chapter is written to be a valuable freestanding contribution to our collective wisdom. The set of case studies as a whole helps to build a collection of different perspectives on competition policy.Less

Competition Policy for the New Era : Insights from the BRICS Countries

Published in print: 2017-11-30

This book presents a new stage in the contributions of the BRICS countries (Brazil, Russia, India, China, and South Africa) to the development of Competition Law and policy. These countries have significant influence in their respective regions and in the world. The changing global environment means greater political and economic role for the BRICS and other emerging countries. BRICS countries are expected to contribute nearly half of all global gross domestic product growth by 2020. For more than a century, the path of Competition Law has been defined by the developed and industrialized countries of the world. Much later, developing countries and emerging economies came on the scene. They experience many of the old competition problems, but they also experience new problems, and experience even the old problems differently. Where are the fora to talk about Competition Law and policy fit for developing and emerging economies? The contributors in this book are well-known academic and practising economists and lawyers from both developed and developing countries. The chapters begin with a brief introduction of the topic, followed by a critical discussion and a conclusion. Accordingly, each chapter is organized around a central argument made by its author(s) in relation to the issue or case study discussed. These arguments are thoughtful, precise, and very different from each another. Each chapter is written to be a valuable freestanding contribution to our collective wisdom. The set of case studies as a whole helps to build a collection of different perspectives on competition policy.

Controlling market power is a crucial issue in a liberalised telecommunications market where incumbents usually remain dominant for some time after the opening of the market to competition. ...
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Controlling market power is a crucial issue in a liberalised telecommunications market where incumbents usually remain dominant for some time after the opening of the market to competition. Controlling market power can be achieved through two distinct sets of rules and institutions: economy-wide antitrust rules and institutions, which have been in place in most industrialised countries for several decades, and infrastructure or sector-specific rules and institutions which have been specifically adopted to promote competition and control market power in telecommunications or in particular infrastructure sectors. In this context, the relationship between the two sets of rules and institutions becomes an issue of growing importance. Relying on a comparative analysis of five countries (the United States, New Zealand, the United Kingdom, Chile, and Australia), the present book seeks to shed some light on how economy-wide and infrastructure or sector-specific components of the regulatory framework should be designed and on what the respective roles of such components should be based to maximise the efficiency of economic regulation in telecommunications.Less

Damien GéradinMichel Kerf

Published in print: 2003-02-06

Controlling market power is a crucial issue in a liberalised telecommunications market where incumbents usually remain dominant for some time after the opening of the market to competition. Controlling market power can be achieved through two distinct sets of rules and institutions: economy-wide antitrust rules and institutions, which have been in place in most industrialised countries for several decades, and infrastructure or sector-specific rules and institutions which have been specifically adopted to promote competition and control market power in telecommunications or in particular infrastructure sectors. In this context, the relationship between the two sets of rules and institutions becomes an issue of growing importance. Relying on a comparative analysis of five countries (the United States, New Zealand, the United Kingdom, Chile, and Australia), the present book seeks to shed some light on how economy-wide and infrastructure or sector-specific components of the regulatory framework should be designed and on what the respective roles of such components should be based to maximise the efficiency of economic regulation in telecommunications.

Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors ...
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Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.Less

Creation without Restraint : Promoting Liberty and Rivalry in Innovation

Christina BohannanHerbert Hovenkamp

Published in print: 2012-01-23

Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP “misuse,” which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the “innovation commons,” or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.

Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which ...
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Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.Less

The Criminalization of European Cartel Enforcement : Theoretical, Legal, and Practical Challenges

Peter Whelan

Published in print: 2014-08-07

Cartel activity is prohibited under EU law by Article 101(1) TFEU. Firms violating this provision face severe punishment from the European Commission, the NCAs, and the national courts, which regularly impose stiff fines. Recently, however, it has been recognized that punishment should focus on the individuals within the firms responsible, as well as the firms themselves, leading to a growing tendency to criminalize cartel activity in the EU Member States. Some crucial challenges need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. First, given the severe consequences of a custodial sentence, criminal antitrust punishment must be justifiable in principle: a robust normative framework rationalizing the existence of criminal cartel sanctions is needed. Second, for it to be legitimate, antitrust criminalization should respect the mandatory legalities of the European jurisdiction in question, including the accused's due process rights and the principle of legal certainty. Finally, the correct practical measures (e.g., a criminal leniency policy and a correctly defined criminal cartel offence) are needed to ensure that the punishment achieves its aims in practice while maintaining its legitimacy. These challenges can be conceptualized respectively as theoretical, legal, and practical. They are analysed in this book to further the understanding of the complexity of the European antitrust criminalization process. The book also acknowledges that the challenges should not be considered in isolation and that, in fact, there is a dynamic relationship between them and that an effective antitrust criminalization policy recognizes and respects this complex interaction.

Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much ...
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Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much effort has been devoted to nudging substantive law convergence in the absence of an international law of competition. But it is widely acknowledged that institutions play as great a role as substantive principles in the harmonious — or dissonant — application of the law. This book provides an in-depth study of the institutions of antitrust. It does so through a particular inquiry: Do the competition systems of the world embrace substantially the same process norms? Are global norms embedded in the institutional arrangements, however disparate? Delving deeply into their jurisdictions, the chapters illuminate the inner workings of the systems and expose the process norms embedded within. Case studies feature Australia/New Zealand, Canada, Chile, China, Japan, South Africa, the USA, and the European Union, as well as the four leading international institutions involved in competition: the World Trade Organization, the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the International Competition Network; and the introductory and synthesizing chapter draws also from the new institutional arrangements of Brazil and India. The book reveals that there are indeed common process norms across the very different systems; thus, this study is a counterpart to studies on convergence of substantive rules. The synthesizing chapter observes an emerging ‘sympathy of systems’ in which global process norms, along with substantive norms, play a critical role.Less

The Design of Competition Law Institutions : Global Norms, Local Choices

Published in print: 2012-12-20

Competition (or antitrust) law is national law. More than 120 jurisdictions have adopted their own competition law. Is there a need for convergence of the competition law systems of the world? Much effort has been devoted to nudging substantive law convergence in the absence of an international law of competition. But it is widely acknowledged that institutions play as great a role as substantive principles in the harmonious — or dissonant — application of the law. This book provides an in-depth study of the institutions of antitrust. It does so through a particular inquiry: Do the competition systems of the world embrace substantially the same process norms? Are global norms embedded in the institutional arrangements, however disparate? Delving deeply into their jurisdictions, the chapters illuminate the inner workings of the systems and expose the process norms embedded within. Case studies feature Australia/New Zealand, Canada, Chile, China, Japan, South Africa, the USA, and the European Union, as well as the four leading international institutions involved in competition: the World Trade Organization, the Organization for Economic Cooperation and Development, the United Nations Conference on Trade and Development, and the International Competition Network; and the introductory and synthesizing chapter draws also from the new institutional arrangements of Brazil and India. The book reveals that there are indeed common process norms across the very different systems; thus, this study is a counterpart to studies on convergence of substantive rules. The synthesizing chapter observes an emerging ‘sympathy of systems’ in which global process norms, along with substantive norms, play a critical role.